Voces v. Energy Resource Technology, G.O.M., L.L.C.
704 F. App'x 345
5th Cir.2017Background
- ERT contracted OSF, an independent contractor, to remove the Vermillion 200A offshore platform; the written contract and OSF’s Work Plan assigned OSF responsibility to develop and implement safe removal procedures.
- OSF crews began prep work cutting pad welds on the ABJ-332 tank; OSF had an internal 50% Rule (do not cut more than 50% of pad welds unless crane support in place).
- ERT maintained an on-site company man whose role, per the contract, was to monitor OSF’s compliance with the contract and be informed of changes, not to direct day-to-day methods.
- During prep work, welds failed and the ABJ-332 tank rotated free after remaining connections were cut; welder Peter Voces fell into the Gulf and drowned.
- BSEE recommended an Incident of Non-Compliance against ERT for (1) accepting OSF’s plan without further engineering verification and (2) the company man’s failure to recognize OSF’s deviation from safety procedures; ERT disputed the findings.
- Plaintiff sued ERT (and nominally Talos) under Louisiana law (applied on the OCS) alleging (1) vicarious liability under the operational-control/authorization exceptions to the independent-contractor rule, and (2) independent negligence for voluntarily assuming safety duties; district court granted summary judgment for ERT; Fifth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ERT exercised operational control over OSF so as to be vicariously liable | ERT’s company man participated in decisions, reviewed the Work Plan, and allegedly approved or influenced procedures | Contract and Work Plan reserved step-by-step control to OSF; company man merely monitored compliance and did not direct methods | No operational control: contractual reservation of procedural control to OSF and evidence shows company man inspected/monitored only |
| Whether ERT expressly or impliedly authorized unsafe practices | Company man knew of or participated in decisions (e.g., delaying heavy lifts) and failed to stop unsafe work, amounting to authorization | Knowledge or discussion isn’t authorization; no evidence ERT ordered or directed unsafe methods | No authorization: mere observation/participation does not equal express or implied approval of unsafe means |
| Whether ERT voluntarily assumed a duty to ensure Work Plan safety (independent negligence) | ERT’s letter to BSEE and presence of company man show ERT undertook safety oversight, creating a duty | Any oversight was contractual monitoring of OSF obligations; no extra-contractual undertaking shown | No assumed duty: plaintiff failed to identify extra-contractual conduct or reliance; summary judgment proper |
| If ERT undertook a safety duty, whether plaintiff showed required elements (increase in risk, reliance, or supplanting of OSF’s duty) | Plaintiff argued Restatement theory permits liability without showing increase in risk or reliance | Louisiana law requires increase in risk, reliance, or that the undertaking supplant the contractor’s duty; no such evidence here | No triable issue: plaintiff did not show increase in risk, reliance, or that ERT intended to supplant OSF’s duty; summary judgment proper |
Key Cases Cited
- Graham v. Amoco Oil Co., 21 F.3d 643 (5th Cir. 1994) (principal not liable for independent contractor absent exceptions; principal still liable for its own negligence)
- Bartholomew v. CNG Producing Co., 832 F.2d 326 (5th Cir. 1987) (operational-control exception explained)
- Ainsworth v. Shell Offshore, Inc., 829 F.2d 548 (5th Cir. 1987) (contract reservation of control central to operational-control analysis)
- Fruge v. Parker Drilling Co., 337 F.3d 558 (5th Cir. 2003) (operational-control requires control over step-by-step methods)
- Le-Jeune v. Shell Oil Co., 950 F.2d 267 (5th Cir. 1992) (requiring contractor to follow owner safety rules does not alone create operational control)
- Duplantis v. Shell Offshore, Inc., 948 F.2d 187 (5th Cir. 1991) (company man’s monitoring does not necessarily establish operational control)
- Coulter v. Texaco, Inc., 117 F.3d 909 (5th Cir. 1997) (supervision/inspection for contractual compliance insufficient for operational control)
- Davis v. Dynamic Offshore Res., L.L.C., 865 F.3d 235 (5th Cir. 2017) (company man did not authorize unsafe condition where he did not order the risky act)
- Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (conclusory affidavits cannot defeat summary judgment)
- Lechuga v. S. Pac. Transp. Co., 949 F.2d 790 (5th Cir. 1992) (need non-conclusory evidence to survive summary judgment)